In the copyright battles among television networks and Internet Service Providers, the Court of Appeals in Spain has found that YouTube is sheltered from liability by the hosting, safe harbor in Article 16 of the Spanish Information Society Services Act. YouTube cannot be enjoined generally to present future instances of infringing content being uploaded.
In Telecinco v. YouTube, the court in Madrid found that for the safe harbor to apply, the provider must have a “mere technical, automatic, and passive nature,” implying that the provider “has neither knowledge of nor control over information which is transmitted or stored.” YouTube fulfills these criteria.
The court ruled (the case in Spanish) that YouTube is shielded because it lacks actual knowledge of specific instances of infringement. While Telecinco argued that the presence of its logo stamped on its content should suffice to indicate ownership and thus provide those potentially infringing on its material with actual knowledge, the court said requiring YouTube to hunt for such content would entail a general obligation for monitoring.
The court declined to grant Telecinco an injunction to suspend YouTube’s carrying the copyrighted material, saying that “imposing such a general injunction would . . . entail a duty of monitoring all contents on the platform, presently and in the future…”
What path, then, does this leave for content creators in Spain? As with their American counterparts, they can, of course, pursue Google-YouTube’s well-publicized system of filing take-down notices and any follow-on procedures. These are notorious for how slowly they occur, and particularly since part of Telecinco’s argument in its case turned on the notion of YouTube as a content giant itself, they have fueled cynicism in some quarters about Google’s competitive interests.